Mode of Execution

The Code lays down various modes of execution.

The Code allows more than one mode of execution of

decrees. As a general rule, a decree-holder has an
option to choose a particular mode for executing and
enforcing a decree passed by a competent court in his
favour. It is for him to decide in which mode he will
execute his decree.

Section 51 of the Code is very wide and permits

execution of decrees by different modes. It gives an
option to the decree-holder of enforcing a decree by
several modes available under the Code. As a general
rule, therefore, a court passing a decree against the
defendant should not ordinarily place any limitation as
to the mode in which it is to be executed.

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The Code lays down the following modes for execution
of different types of decrees-

(1) Delivery of property

(a) Movable property: Section 51(a), Rule 31

(b) Immovable property: Rules 35-36

(2) Attachment and sale of property: Section 51(b)

(3) Arrest and detention: Section 51(c)

(4) Appointment of receiver: Section 51(d)

(5) Partition: Section 54

(6) Cross-decrees and cross-claims: Rules 18-20

(7) Payment of money: Rules 2, 30

(8) Specific performance of contract: Rule 32

(9) Injunction: Rule 32

(10) Restitution of conjugal rights: Rules 32-33

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(11) Execution of document: Rule 34

(12) Endorsement of negotiable instrument: Rule 34

(13) Attachment of rent, mesne profits, etc.: Rule 42

(14) Liability of surety: Section 145

(15) Decree against corporation: Rule 32

(16) Decree against firm: Rules 49-50

(17) Attachment of decree: Rule 53

(18) Payment of coins or currency notes: Rule 56

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(1) Delivery of property

(a) Movable property: Section 51(a), Or.21 Rule 31

Where the decree is for any specific movable property,

it may be executed

(i) by seizure and delivery of the property; or

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(ii) by detention of the judgment debtor: or

(iii) by the attachment and sale of his property; or

(iv) by attachment and detention both.

The words specific movable (property) do not include

money and, therefore, a decree for money cannot be
executed under Rule 31. Again, for the application of this
rule the property must be in the possession of the
judgment-debtor. Where the property is in the
possession of a third party, the provisions of this rule do
not apply and the property cannot be attached.

(b) Immovable property: Order21 Rules 35-36

Rules 35 and 36 provide the mode of executing decrees

for possession of immovable property to the decree-
holder. Rules 35 and 36 correspond to Rules 95 and 96
which lay down the procedure for delivery of

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possession to the auction-purchaser who has
purchased the property in an auction-sale.

Where the decree is for immovable property in the

possession of the judgment-debtor or in the possession
of the person bound by the decree, it can be executed
by removing the judgment-debtor or any person
bound by the decree and by delivering possession
thereof to the decree holder. If the decree-holder
satisfactorily establishes identity of decretal property,
the decree must be executed by the court by putting the
decree-holder in possession thereof. Possession
delivered in this manner is known as khas or actual
possession. But if such property is in the possession of a
tenant or other person entitled to occupy the same and
not bound by the decree, the delivery of the property
should be made by affixing a copy of the warrant at
some conspicuous place on the property and

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proclaiming to the occupant by beat of drum or other
customary mode at some convenient place the
substance of the decree regarding the property. This is
known as symbolical or formal possession. The ambit
and scope of Rules 35 and 36 (khas or actual and
symbolic or formal possession).

Order 21 Rule 35 is khas or actual possession, while that

referred to in sub-rule (2) and Rule 36 is formal or
symbolical possession. Formal or symbolical possession
is delivered by fixing a copy of the warrant in some
conspicuous place of the property and proclaiming by
the beat of drum or other customary mode at some
convenient place the substance of the decree. Rules 35
and 36 refer to cases where a suit is brought for
possession of immovable property and a decree is
passed in the suit for the delivery of the property to the
decree-holder.

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Where the decree is for joint possession of immovable
property, possession can be delivered by affixing a copy
of the warrant at some conspicuous place of the
property and proclaiming by beat of drum, or by other
customary mode at some convenient place, the
substance of the decree.

Where the person in possession and bound by the

decree does not afford free access, the officers of the
court may, after giving reasonable warning and facility
to a pardanashin lady to withdraw, - break open into the
building and put the decree holder in possession
thereof.

(2) Attachment and sale of property: Section 51(b)

Section 51(6) empowers the court to order execution of

a decree by attachment and sale or by sale without
attachment of any property. The court is competent to

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attach the property if it is situated within the local limits
of the jurisdiction of the court.32 It is immaterial that the
place of business of the judgment-debtor is outside the
jurisdiction of the court.

Or. 21 Rule 54 provides for the attachment of

immovable property and the procedure for the
proclamation of such attachment.

(3) Arrest and detention: Section 51(c)

The proviso lays down that where the decree is for

payment of money, execution by detention in civil
prison should not be ordered unless, after giving the
judgment-debtor an opportunity of showing cause why
he should not be so detained, the court for reasons to
be recorded in writing is satisfied

(i) that the judgment-debtor with the object of

obstructing or delaying the execution of the decree

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(a) is likely to abscond or leave the local limits of the
jurisdiction of the court; or

(b) has, after the institution of the suit in which the

decree was passed, dishonestly transferred, concealed
or removed any part of his property, or committed any
other act of bad faith in relation to his property; or

(i) that the judgment-debtor has, or has had since the

date of the decree, the means to pay the amount of the
decree or some substantial part thereof and refuses or
neglects or has refused or neglected to pay the same; or
(ii) that the decree is for a sum which the judgment-
debtor was bound in a fiduciary capacity to account for.

These provisions are mandatory in nature and must be

strictly complied with. They are not punitive in character.

(4) Appointment of receiver: Section 51(d)

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The appointment of a receiver in execution proceedings
is considered to be an exceptional remedy and a very
strong case must be made out in support of it. The
decree-holder before resorting to this mode must show
that there is no effective remedy for obtaining relief by
the usual statutory modes of execution. The court also
must be satisfied that the appointment of a receiver is
likely to benefit both the decree-holder and the
judgment-debtor rather than a sale of the attached
property. It has also to be satisfied that the decree is
likely to be realized within a reasonable time from the
attached properties so that the judgment-debtor may
not be burdened with property while he is deprived of
the enjoyment of it. Again, this mode of execution
cannot be resorted to in order to circumvent the
statutory provisions.

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A receiver can be appointed even before the
attachment of the property, and even in respect of the
property situate outside the territorial jurisdiction of the
court. This section, however, should be read with the
provisions of Order 40 Rule 1 regarding the
appointment of a receiver and his powers.

(5) Partition: Section 54

Where a decree is for partition or separate possession of

a share of an undivided estate assessed to the payment
of revenue to the Government, execution should be
effected by the Collector.

(6) Cross-decrees and cross-claims

Rules 18-20 Rules 18 to 20 of Order 21 deal with set-off

of cross-decrees and cross-claims.

If, the amounts under the two decrees are unequal then
full satisfaction will be recorded upon the decree for the

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smaller amount, and part satisfaction upon the decree
for the larger amount, and the execution will be allowed
only for the balance.

(i)A holds a decree against B for Rs 10,000. B also holds

a decree against A for the same amount (i.e. Rs 10,000).
A and B each applies for the execution of his decree to
court C which is having jurisdiction to execute both the
decrees. The decrees, being cross-decrees, will be set-
off against each other fully and neither party will be
allowed to take out execution.

(ii) If in the above illustration B holds a decree against A

only for Rs 5000, i.e. for the smaller amount, he will not
be allowed to take out execution of his decree.
Execution will only be allowed of A's decree to the extent
of Rs 5000 being difference between the two decrees
which remains due after the set off.

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If the amounts under the two decrees are equal then
both the decrees shall satisfy each other and full
satisfaction will be recorded and no payment is required
to be made by any party and no execution will be
allowed to be taken out.

Over and above ordinary suits, the provisions of Rules

18-20 also apply to mortgage suits. The court has also
power to allow set-off to cases not strictly covered by
Rule 18.

(b) Cross-claims: Rules 19-20

(i) Doctrine explained- Rule 19 provides for a set-off in

the case of cross claims in the same decree. It lays down
that if the two sums in cross-claims under the same
decree are equal, satisfaction of each shall be entered in
the decree and no execution shall be allowed to be
taken out. If the two sums are unequal, the party entitled

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to the larger sum may take out execution for the
balance.

The provisions of Order 21 Rules 18-20 apply to ordinary

suits, mortgage suits and other suits not covered by the
provisions of the Code.

(7) Payment of money: Or.21 Rules 2, 30

A decree for payment of money (simpliciter or as an

alternative to some other relief) may be executed by
attachment and sale of property of the
judgment debtor or by his detention in civil prison or
by both.

(b) Modes of paying money All money payable under a

decree shall be paid either

(i) by depositing in the executing court; or

(ii) out of court to the decree-holder; or

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(iii) as per the direction of the court which has passed the
decree. The judgment-debtor is bound to pay the
decretal debt in one of the above modes."

(c) Payment in court- Where the payment has to be

made in court, it may be made either by depositing the
decretal amount in court or by a postal money order or
through a bank.

Where payment is made by depositing the decretal

amount in the executing court, or as per the direction of
the court, which has passed the decree, the judgment-
debtor shall give notice of such payment to the
decree holder through court or directly to him by
registered post acknowledgment due.

a) Payment out of court- A payment to the decree-

holder out of court also discharges the decree. Such
payment may be made by postal money order or

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through a bank or by any other mode wherein payment
is evident in writing. When the payment is made out of
court, the following particulars must be accurately
stated:

(i) The number of the original suit;

(ii) The names of the parties or where there are more

than two plaintiffs or more than two defendants, as the
case may be, the names of the first two plaintiffs and the
first two defendants

(iii) How the money remitted is to be adjusted, that is to

say, whether it is towards the principal, interest or costs;
(iv) The number of the execution case of the court, where
such case is pending: and

(V) The name and address of the payer.

This provision has been made with a view to furnish

necessary details to the decree-holder as to the

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payment made by the judgment-debtor. A payment
made in accordance with Rule 1 of Order 21 discharges
the judgment-debtor from decretal dues. On the
amount being paid, interest shall cease from the date of
payment."

(e) Certification of payment- No payment or

adjustment can be recorded by the court at the instance
of the judgment-debtor unless such payment has been
made either in the court executing the decree, or as per
the direction of the court which has passed the decree,
or out of court to the decree-holder by postal money
order or through a bank or by any other mode wherein
payment is evident in writing or such payment or
adjustment is proved by documentary evidence, or such
payment or adjustment is admitted by or on behalf of
the decree-holder in his reply to the notice by the court
or before the court.

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(f) Effect of payment A payment made in accordance
with the provisions of the Code operates as a valid
discharge of the decree against the judgment-debtor.
When interest is awarded on the decretal amount by the
court, it will cease to run on the sum deposited in the
court or paid to the decree-holder or to any person as
per the direction of the court.

(8) Specific performance of contract: Or.21 Rule 32

Where a decree is for specific performance of a contract,

and the judgment debtor willfully disobeys it, it may be
executed by attachment of his property, or by his
detention in civil prison, or by both.

Where the decree does not specify the time for

performance of the contract, it should be performed
within reasonable time Even if the decree for specific
performance does not provide for delivery of

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possession, the court can deliver possession as
incidental to the execution of the sale deed.

Where the party against whom a decree for specific

performance has been passed is a Corporation, the
decree may be enforced by attachment of the property
of the Corporation or, with the leave of the court, by
detention in civil prison of the directors or other
principal officers thereof, or by both attachment and
detention.

(9) Injunction: Or.21 Rule 32 Where a decree is for

injunction, and the judgment-debtor disobeys it, it may
be executed by attachment of his property, or his
detention in civil prison, or by both. The provision
applies to prohibitory as well as mandatory injunctions,
Where the party against whom a decree for an
injunction has been passed is a Corporation, the decree
may be enforced by attachment of the property of the
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Corporation or, with the leave of the court, by detention
in civil prison of the directors or other principal officers
thereof, or by both, attachment and detention.

(10) Restitution of conjugal rights: Or.21 Rules 32-33

Where a decree is for restitution of conjugal rights, and

the judgment-debtor willfully disobeys it, it may be
executed by attachment of his property.

A decree for restitution of conjugal rights cannot be

executed by sending the person (husband or wife, as the
case may be) to civil prison and the only permissible
mode of executing the decree is attachment of the
property of the judgment-debtor.

Where the parents do not comply with the decree for

restitution of conjugal rights, they can be dealt with
under this provision. Refusal by wife to live with her

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husband in unequivocal terms amounts to wilful
disobedience.

If the judgment-debtor obeys the decree and goes to

live with the decree holder, satisfaction can be entered
of the decree. If the judgment-debtor is ready and
willing to obey the decree, but the decree-holder
obstructs execution thereof without reasonable cause,
the court can, at the instance of the judgment-debtor,
enter satisfaction of the decree.

Where a decree is passed against the husband, the

court, either at the time of passing the decree or at any
time thereafter, may order that in the event of the
decree being disobeyed within the period fixed by the
court, the judgment-debtor shall make such periodical
payments to the decree-holder (wife) as may be just and
proper.

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The only sanction provided by law is by attachment of
property of the defaulting judgment-debtor. This is an
inducement offered by the court in an appropriate case
to the husband or wife to live together in order to give
them an opportunity to settle the matter amicably.

(11) Execution of document: Or.21 Rule 34

Where a decree is for the execution of a document and

the judgment-debtor neglects or refuses to obey the
same, the court shall, after giving an opportunity to the
decree-holder as well as to the judgment-debtor to
prepare a draft of the document in accordance with the
terms of the decree, execute a document in the
prescribed form. It shall have the same effect as the
execution of a document by the party ordered to
execute the same.

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Where the decree is for the execution of a document, the
executing court has to determine whether the draft
document is in conformity with the terms of the decree.
The court, for that purpose, may scrutinize the
document and may also make alterations in the draft to
bring it in conformity with the terms of the decree.

(12) Endorsement of negotiable instrument: Or.21

Rule 34

Where a decree is for the endorsement of a negotiable

instrument and the judgment-debtor neglects or
refuses to obey the decree, the court shall, after giving
an opportunity to the decree-holder as well as to the
judgment-debtor to prepare a draft of endorsement in
accordance with the terms of the decree, endorse a
negotiable instrument in the prescribed form. It shall
have the same effect as the endorsement to the

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negotiable instrument by the party ordered to endorse
the same.

(13) Attachment of rent, mesne profits, etc.: Or.21 Rule

42

Where a decree is for unascertained rent, or mesne

profits, or any other matter, the court may order
attachment of the property of the judgment debtor
before the amount due from him is ascertained. such
attachment, however, cannot affect any interest created
in the property prior to the attachment. The expression
"any other matter" should be construed ejusdem
generis. It covers matters similar to rent and mesne
profits. An attachment under this rule is in the execution.
It is thus similar to attachment before judgment. A
decree-holder applying for attachment under this
provision can claim rateable distribution.

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(14) Liability of surety: Section 145

Where any person has furnished security or given a

guarantee

(a) for the performance of any decree or any part

thereof; or

(b) for the restitution of any property taken in execution

of a decree; or

(c) for the payment of any money, or the fulfilment of

any condition imposed on any person, under an order of
the court in any suit or in any proceeding consequent
thereon; the decree or order may be executed-

(i) if he has rendered himself personally liable, against

him to that extent;

(ii) if he has furnished any property as security, by sale of

such property to the extent of the security;

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(iii) if the case falls under both the clauses, i.e. he has
rendered himself personally liable as well as has
furnished security, then to the extent specified in clauses
(i) and (ii).

The liability of a surety is joint and several.120 Hence, if

the creditor seeks to enforce the surety bond against
one or some of the sureties, the other surety or sureties
will not be discharged.

Notice to the surety is a condition precedent to the

validity of the proceedings against him.

(15) Decree against corporation: Or.21 Rule 32

Where the party against whom a decree for specific

performance of a contract or for injunction has been
passed is a corporation, and has wilfully failed to obey
the decree passed against it, the same may be executed
by the attachment of its property or with the leave of

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the court by detention in civil prison of its directors or
other officers or by both.

(16) Decree against firm: Or.21 Rules 49-50

Where a decree has been passed against a partnership

firm, it may be executed against

(a) any partnership property;

(b) any person who has appeared in his own name as a

partner, or admitted, or held to be a partner; or

(c) any person who has been individually served with a

summons as a partner and has failed to appear.

Property belonging to a partnership firm can be

attached or sold in execution of a decree passed
against the firm or against the partners in the firm as
such.

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The provisions of Rule 50 of Order 21 should be read
with Order 30. The latter deals with the procedure in
suits instituted by or against firms, while the former
provides the mode of execution of decrees which have
been obtained against firms in the firm name.

(17) Attachment of decree: Or.21 Rule 53

Where the property to be attached is a decree either

(a)for payment of money, or

(b)for sale in enforcement of a mortgage or charge,

the attachment can be effected either by the court which

passed the decree, or by the executing court by issuing
notice to the court which has passed the decree. Other
decrees can be executed by issuing notice to the
decree-holder, prohibiting him from transferring or
changing the property to be attached and also by

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sending a notice to the executing court to abstain from
executing the decree until such notice is cancelled.

(18) Payment of coins or currency notes: Or.21 Rule 56

Where the property to be attached are coins or currency
notes, the court may direct that such coins or currency
notes or a part thereof sufficient to satisfy the decree, be
paid to the decree-holder.

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